The Misapplication of The Indian Child Welfare Act

Last December, Attorney General Eric Holder announced a new Department of Justice (DOJ) initiative aimed at promoting compliance with the Indian Child Welfare Act (ICWA), a 1978 federal law passed in response to the “wholesale removal” of Native American children from their families.

Tribes were rightly concerned at the time that many Native American children were removed from their families by people who are not Native America social workers unfamiliar with tribal child-rearing practices and placed in non-Native America foster and adoptive homes away from Native America Country, where many were forced to assimilate into the majority culture, losing connection to the tribal life and customs in which they had been raised. Tribes and Native American families suffered greatly too, as they saw many of their younger members taken away.

In his announcement, Holder pledged to “ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Native America cultures.” In that statement, Holder demonstrates an alarming level of naiveté regarding ICWA, and the ways it is impacting children today.

Two of the common-sense measures of a good law are that it does what it was intended to do and, equally important, it doesn’t do what it wasn’t intended to do.

By this second measure, ICWA, though well-intentioned, fails monumentally, and does so in ways that increased compliance will mean only more disruption and trauma for many children.

My wife and I first encountered the Indian Child Welfare Act in 2001. We were foster parents to two young boys whom we hoped to adopt. The boys are half brothers biologically, the older five years old and Caucasian, the younger four and Hispanic, or so we were told when they were placed in our home in the summer of 2000.

Soon after they were placed with us, they began calling us Mom and Dad, names they had never called their biological parents, whom they had called by their first names. Their social worker remarked that she had never seen foster children and foster parents bond as quickly as we all had. Their therapist was elated at their progress. It was truly a match made in heaven, if ever a foster placement could be called that.

No relatives stepped forward to take the boys in the beginning, and their biological parents were nowhere to be found, so Los Angeles County DCFS workers began to treat our case as a fast-track adoption. We were thrilled, the boys were doing great and quickly growing attached, and we all began to prepare to make them a part of our permanent family.

Several months into the placement, a paternal relative of our older son stepped forward, requesting custody of him. Though we were told the case was far too advanced for a relative to receive placement preference at that point, and though our son had no memory of ever meeting this relative, the relative had played a trump card that apparently changed everything.

The boys, as it turned out, are 1/16 Native American, which made them eligible for membership in the Iowa Tribe of Kansas and Nebraska, making them subject to ICWA, and gave the relative (though non-NA like ourselves and related to only one of the boys) placement preference over us.

When questioned, the boys knew nothing of their tribe or Native heritage. The reservation itself was over 1,500 miles away, and neither of the boys had been enrolled in the tribe by their abusive grandfather (their mother was enrolled, unbeknownst to her).

Conversely, the tribe had no knowledge of the boys.

The case was turned over to the American Native America Unit at the L.A. County Department of Children and Family Services, where social workers began a nearly year-long battle to remove our boys from our home; against the boys’ will, against our will, and against the boys’ biological mother’s will, and for no other reason but their mother’s enrollment in a tribe some 32 years before.

I stayed up many late nights researching ICWA, and I soon discovered that neither the tribes, nor Congress, were talking about children like my sons when they came together to pass this law in 1978. But trying to reason with the social workers and their supervisors proved fruitless; in their eyes, the boys were Native America, and we were not, and therefore we were unfit to raise them.

The only thing that apparently mattered to the social workers was moving them from our non-Native America home using any means possible, including manipulation and fabrication of facts, attempted coercion and outright perjury.

Eventually, the boys’ mother testified before the judge that she wanted the boys to stay with us, which gave the judge the freedom (through a good cause showing) to allow the boys to stay with us. All involved knew that the result was miraculous, but it shouldn’t have been.

Since the adoption, we have heard from many foster and adoptive families in similar situations. In some cases, justice prevails, and children are able to stay in loving, stable families in which they’ve attached, but in others, it doesn’t, and children are removed from homes in which they have lived and thrived for considerable amounts of time because of nothing more than some minute blood connection to a federally recognized tribe.

As Holder drew to a close, he stated, “We recognize that any child in Native America Country – in Oklahoma, or Montana, or New Mexico – is not fundamentally different from an African-American kid growing up in New York City. And neither child should be forced to choose between their cultural heritage and their well-being.”

And to that I would ask Mr. Holder what that has to do with two young boys born and raised in Southern California, whose only connection to a tribe in Northeastern Kansas is a few drops of blood. Had my son been moved to live with his paternal relative, would he have been raised in a home that was “suffused with the proud traditions of Native America cultures?”

I think not.

Johnston Moore is the co-founder and executive director of Home Forever.

This article has two concerns. First, the issue with ICWA as stated. Second, the author freely refers to the workers as Social Workers: “The only thing that apparently mattered to the social workers was moving them from our non-Native America home using any means possible, including manipulation and fabrication of facts, attempted coercion and outright perjury.” This misinformed individual is referring to child welfare workers as Social Workers. While it is more than likely that individuals with Social Work degrees are employed by the Department of Child Welfare, the term here is used irresponsibly. Social Workers are professionals that have extensive training, and are not likely the individuals the author was dealing with. In fact, if a professionally licensed Social Worker did behave in the way described, with no concern of advocating for the best welfare of the children, their credentials surely should be questioned. As a professionally licensed Social Worker, I don’t know of one of my colleagues that is not aware of the shortcomings of legislation, particularly concerning marginalized populations. While we at times have our hands tied when it comes to policy, there is a specific code of ethics that professional Social Workers are to abide by. Therefore, the author has either exaggerated his experience, or he was encountering workers that were not in fact Social Workers. However, if no exaggeration is present, and any of the workers encountered were a Social Workers, they should be reported to the NASW. With that, I stress the importance of legislation that requires true professionals to be employed in the social service field. With more professionals in the field, we are likely to increase our ability to advocate for judicious policy enhancement.

Lucas, I exaggerated nothing, nor did I use the term irresponsibly. The workers were presented as Los Angeles County DCFS CSWs (children’s social workers). In fact, here is language from the recent obituary of the Social Worker most responsible:

“******* **** graduated from … California State University Long Beach in 1989 with a Master’s degree in Social Work. She worked for the County of Los Angeles Department of Family and Children’s Services, Indian Unit where she worked tirelessly and passionately to keep Native American children in Indian homes.”

Her co-supervisor, an LCSW, once told me to defy a doctor’s orders simply because if I had obeyed the doctor’s orders, it would have interfered with a scheduled visit with the family member fighting us for custody.

If those workers were misrepresented to us, or if they smeared the name of social workers across the board, Los Angeles County DCFS needs to answer for that, not me.

As for my criticism of ICWA as applied to our children, are you implying that Congress and the tribes were indeed talking about kids like my sons when they came together to pass the law? I don’t want to misread what you wrote, and your statement isn’t clear.

If you are saying that, then I invite you to present a valid argument supporting your position. I am fully confident that if you take the time to read the transcripts from the 1974 and 1978 hearings, you will have a very difficult time doing so. I have been making these same points for nearly 14 years, and not one person has ever been able to refute my position, nor has anyone even tried. Believe me, I have given them plenty of opportunities.

I would love for just one ICWA apologist to say, “Yes, Congress and the tribes did intend for ICWA to apply to kids like yours, and here is the proof.” They can’t though.

I agree with you that true professionals need to be employed in the field…professionals that will be most concerned about children’s best interests.

Thank you for sharing. That being then case, I do believe it was your responsibility to report those actions. You are obviously passionate about your position and situation, so why would you not take the steps to report individual that acted unprofessionally and unethically? As I stated previously, social workers are to abide by a specific code of ethics, and if they are not doing so, then they should have their licence investigated. Just like fighting unjust policy, you cannot leave that up to someone else, especially since you are the one that endured the experience. With that, it is not clear the motivation of the family member. No matter what his motivation, it is a social workers responsibility to advocate for the best interest of the client, or the children in this case. Whether it be fighting to keep a child in a home, or returning them to their family, it is thier responsibility to look deeply into the situation and think critically about how they will respond. A professional social worker is trained to realize that policies and theories are guidelines, which should be regularly questioned and investigated for appropriateness. We should always strive for improvement. I apologize if I came across as opposing your main point on ICWA. When I stated that their were two issues, I was agreeing with your position on ICWA, and adding that there is also and issue with the workers mentioned. I have a strong issue with individuals who either misrepresent themselves, or practice unethically, which was my main motivation to respond… Because when it comes down to it, people in the field lie at the root of the problem. They hold the power to either help diminish the problem or make it much worse. That is also the reason I might have come across so harshly, and again I apologize. I regularly experience people in the feild who truly do not belong, while claiming to be something they are not. My passion should have been more directed at them. Unfortunately, unprofessional workers have the potential to severely damage the lives of the people they employed to serve. Therefore, if you truly were treated unethically by licensed social workers, I reiterate that it was, and is your responsibility to report them. If a police officer mistreated you, would you leave it up to the police department to figure it out and take action?

Johnston MooreApril 16, 2015

Thanks, Lucas, for clarifying your statements. I agree with you that it was our responsibility to report the misdeeds of the social workers. There were two things that make doing so difficult. One, foster parents, at least in L.A. County, are not educated on what actions to take if they encounter unscrupulous workers. Two, foster parents are often intimidated into keeping their mouths shut for fear of retribution by the County. We did not fall victim to second of these factors, but in hindsight, we could have used some help with the first. We told everyone we could think of what was going on. We thought (naively) that speaking to reputable workers and supervisors at the County level would make a difference. The problem was that as we went up the ladder, we witnessed a frightening tendency of administrators to simply circle the wagons and protect their workers. It was only when we reached the Director of DCFS, who met with us at the urging of the Board of Supervisors, that we finally believed our concerns were shared by someone at the County level. She asked her workers point blank if they had done a best interests analysis on our case, and they admitted they had not. She was appalled, and she eventually took the case out of their hands. So many children have been hurt over the years by the social workers in the L.A. County DCFS Indian Unit. Though the workers we dealt with are long gone, the current batch still operates with the same lack of professionalism and ethics. I appreciate you suggesting we go to the NASW. I will pass that suggestion on to all the families who are encountering similar experiences to what we experienced. If you are interested, I would be happy to share some of the horror stories…maybe you can help me find the right people to finally put a stop to it.